AZACM v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Each of the applicants arrived in Australia on a tourist visa, which expired on 28 April 2011. Each of them subsequently, in July 2011, applied for a protection visa under the Migration Act 1958 (Cth) (the Act). 2 The applicants are each Indian citizens from the Punjab who claimed to have a well-founded fear of persecution by reason of fear of violence towards them because of their Sikh religion. 3 Their claims were rejected by a delegate of the first respondent and then in March 2012 by the Refugee Review Tribunal (the Tribunal). 4 Each of the applicants then applied separately to the Federal Magistrates Court (now known as the Federal Circuit Court) under s 476 of the Act to set aside the Tribunal's decision. 5 Because s 477(1) of the Act requires such an application to have been made within 35 days of the Tribunal decision, and because the male applicant's application was made 191 days after the Tribunal decision, and the female applicant's decision was made 202 days after the Tribunal decision, they each required an extension of time from the Federal Magistrates Court before they could pursue the claim to have the Tribunal decision set aside. 6 On 21 March 2013, the Federal Magistrates Court refused each application for an extension of time. In each case, it also dismissed the application under s 476 as incompetent and made an order for costs. 7 The present application in each case is for an extension of time to seek leave to appeal to this Court from the decision of the Federal Magistrates Court. The extension of time is required because r 35.13 of the Federal Court Rules 2011 (Cth) requires such an application to have been made within 14 days of the decision from which leave to appeal is sought. The application in each case was made a little after the expiration of 14 days. 8 More importantly, the application for leave to appeal from the Federal Magistrates Court orders (which refused the applicants an extension of time to apply to that Court) needs a statutory foundation. 9 In my view, there is no statutory foundation for either applicant to seek leave to appeal from the decision of the Federal Magistrates Court in respect of those orders. 10 The Federal Court has jurisdiction under s 24 of the Federal Court of Australia Act 1976 (Cth) to hear appeals from judgments of the Federal Magistrates Court unless there is a particular provision which prevents it from doing so. Section 476A(3) of the Act has that effect. It relevantly provides: Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from: (a) a judgment of the Federal Circuit Court [formerly known as the Federal Magistrates Court: see Federal Circuit Court of Australia Act 1999 (Cth), s 8(1)] that makes an order or refuses to make an order under subsection 477(2); or … 11 Section 477(2) of the Act is the provision under which the Federal Magistrates Court refused the applications for an extension of time. Consequently, I think it is plain that this court has no jurisdiction to entertain the present applications, even if they were made within 14 days of those orders of the Federal Magistrates Court. There are a number of decisions of this Court to the same effect: see BZABK v Minister for Immigration and Citizenship [2012] FCA 774 (BZABK) per Foster J at [30], [36]-[38]; SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 per Rares J; SZQYP v Hannigan [2012] FCA 723 per Katzmann J at [18]-[19]. 12 In BZABK, Foster J addressed the further question of whether, because the Federal Magistrates Court made an additional order dismissing the applications made pursuant to s 476 of the Act, s 476A(3) did not have the effect which it apparently was intended to have. I refer in particular to his Honour's discussion at [38]-[44] of his Honour's reasons. I respectfully agree with his Honour. In particular, once the application for an extension of time to apply to review the Tribunal decision was refused, there was no application before that Court which needed to be considered and dismissed. To the extent to which the same issue arises here because of the second order made by the Federal Magistrates Court in each of the matters for which an extension of time to appeal is now sought, any appeal from that order could not possibly succeed. 13 Accordingly, in each matter I order that the application for leave to appeal from the orders of the Federal Magistrates Court given on 21 March 2013 and for an extension of time within which to seek that leave to appeal is refused. The applicants should pay the costs of the first respondent in each application. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.